Wooders v Tasmania
[2023] TASSC 35
•22 September 2023
[2023] TASSC 35
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Wooders v Tasmania [2023] TASSC 35 |
| PARTIES: | WOODERS, Ann Louise |
| v | |
| STATE OF TASMANIA | |
| FILE NO/S: | 1046/2019, 655/2020, 593/2021, 389/2022 |
| DELIVERED ON: | 22 September 2023 |
| DELIVERED AT: | Launceston |
| HEARING DATE/S: | 5 July 2023 |
| JUDGMENT OF: | Pearce J |
| CATCHWORDS: |
Criminal Law – Procedure – Bail – Recognizances – Forfeiture and estreatment – Relief from estreatment and reduction of liability – Recognizance of $20,000 for man who breached non-contact condition – Application for return of deposit – Cross application for forfeiture – Forfeiture of $8,000 ordered.
Bail Act 1994 (Tas), ss 7, 19, 20.
Aust Dig Criminal Law [3005]
REPRESENTATION:
Counsel:
Applicant: In person Respondent: F Radin
Solicitors:
Respondent: Director of Public Prosecutions
| Judgment Number: | [2023] TASSC 35 |
| Number of paragraphs: | 33 |
Serial No 35/2023 File No 1046/2019
655/2020 593/2021 389/2022
ANN LOUISE WOODERS v STATE OF TASMANIA
| REASONS FOR JUDGMENT | PEARCE J |
22 September 2023
1 Anne-Louise Wooders applies under the Bail Act 1994 for return to her of $20,000 deposited to secure compliance by Stephen Williams with conditions of his bail. Over the period of more than five years between July 2017 and September 2022, Mr Williams was progressively charged with a number of serious indictable crimes. He spent a significant part of that period in custody either serving sentences or on remand. For the rest of the time he was on bail. The State opposes return of the deposited sum to Ms Wooders and applies for orders that the sum be forfeited and, moreover, for payment of an additional amount it says is payable by Ms Wooders pursuant to a promissory recognizance. The State's application is made on the basis that although there was no occasion on which Mr Williams failed to appear to answer his bail, he committed other breaches of bail conditions between the end of December 2020 and September 2021.
2 For the reasons which follow I will order that part of the deposit be forfeited but remainder is to be returned to Ms Wooders.
The history of the bail orders
3 A series of bail orders were made concerning Mr Williams over a protracted period. In the proceedings before me Ms Wooders explained that she is not related to Mr Williams but had promised his mother, before her death about 20 years ago, that she would try to take care of Mr Williams and his three brothers. She had, she said, a close relationship with him since then.
4 In July 2017, Mr Williams was charged with possessing a firearm in contravention of a firearms prohibition order. By then he already had a lengthy criminal history. He was admitted to bail on 7 December 2017. In addition to residential, curfew and reporting conditions, there was a condition of bail that:
"Ann Louise Wootas (sic) of [address specified] in Tasmania deposit the sum of $5,000 with the Registrar of the Supreme Court and enter into a recognizance in the prescribed form before an authorise person to forfeit that sum if you fail to appear before a court as required, or fail to comply with a condition of this order for bail."
5 Ms Wooders signed a document on the same day entitled "Recognizance" in which she acknowledged that if Mr Williams failed to comply with all of the terms of his bail she "shall forfeit to the Crown the sum of $5,000". The sum of $5,000 was deposited. The reference in the bail document and the recognizance form to "Ann Louise Wootas" is a spelling error. It was Ms Wooders who entered into the obligation, signed the recognizance and apparently paid the sum deposited.
6 In November 2018 Mr Williams was arrested and charged with trafficking in a controlled substance. On 9 November 2018 a fresh bail order was made on both the trafficking charge and the firearm charge he already faced. The conditions of bail included that he live at a specified address and that he report to the police weekly. The order also contained a condition requiring Ms Wooders to
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deposit $5,000 and to enter into a recognizance but acknowledged that the specified sum had already been deposited in accordance with the bail order made 7 December 2017. It was not until 9 November 2018 that Ms Wooders signed a new recognizance in identical terms, which also noted the deposit already made.
7 A year later, on 15 November 2019, Mr Williams was arrested and remanded in custody for serious criminal conduct which eventually came to be dealt with under the same trafficking charge. He remained in custody until he was re-admitted to bail on 27 March 2020. This bail order included conditions that he live at a specified address in Waverley, that he be at that address between 7.00 pm and 7.00 am, and that he report to the police weekly. There was also a condition that he not approach or communicate with three named persons, one of whom was Jordan Fenton. The condition requiring Ms Wooders to deposit the $5,000 already deposited was duplicated but, this time, an additional condition was imposed that:
"Ann Louise Wootas (sic) of [address specified] in Tasmania must enter into a recognisance in the prescribed form before an authorised person to forfeit $10,000 if Stephen James Williams fails to appear before a court as required or fails to comply with a condition of the order for bail."
8 On 27 March 2020, Ms Wooders signed a further recognizance form expressed to be under the Bail Act, s 7(5)(b) acknowledging that if Mr Williams failed to comply with all the terms of his bail she would "be liable to pay the Crown the sum of $10,000."
9 On 16 November 2020, Mr Williams' bail address was varied but otherwise the conditions of his bail continued in the same terms. About three weeks later, on 4 December 2020, Ms Fenton gave birth to a child. Mr Williams was the father. On 23 December 2020 he was arrested for breaching his bail by being at the Launceston General Hospital on 4 December 2020 at a time which breached his curfew, and by being in the presence of Ms Fenton.
10 On 6 January 2021 he was again re-admitted to bail. This time, the relevant condition of bail
was in these terms:
"That Ann Louise Wooders of [address specified] deposit the sum of $20,000 with the Registrar of the Supreme Court and enter into a recognizance in the prescribed form to forfeit that sum if you fail to appear before a court as required or fail to comply with a condition of this order for bail."
11 The bail document again referred to the $5,000 already deposited. On 6 January 2021 a further $15,000 was deposited. Mr Williams was released but arrested again on 12 May 2021 for breaching bail by contacting Ms Fenton by phone and text message on 29 May and 31 May 2021.
12 Mr Williams' bail was re-instated on 14 May 2021 and, on that day, Ms Wooders signed a further recognizance reflecting the bail orders made on 6 January 2021 and 14 May 2021. Except as to the specified sum, it was in equivalent terms to ones she had previously signed. It was expressed to be under the Bail Act, s 7(5)(b) and contained an acknowledgement that if Mr Williams failed to comply with all the terms of his bail she would "be liable to pay the Crown the sum of $20,000."
13 On 15 September 2021 Mr Williams was again arrested for breaching his bail for contacting Ms Fenton by phone on 1 September 2021. He was remanded in custody and his bail was revoked on 30 September 2021.
14 On 16 March 2022 Mr Williams pleaded guilty in the Magistrates Court to all of the charges of breaching conditions of his bail to which I have referred. No application for forfeiture was made.
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15 After having been in custody for more than 10 months, either serving a sentence or on remand for the trafficking charge, Mr Williams was again granted bail on 11 August 2022. On this occasion a fresh order for bail was made. It was a condition of that bail that a different person, Karen Walker, deposit $5,000 to be forfeited to the Crown if Mr Williams failed to appear as required or failed to comply with a condition of his bail.
16 Mr Williams' trial for trafficking took place in September 2022. Ms Wooders' application for return of the $20,000 bail deposit was made after Mr Williams' release on bail on 11 August 2022 but before the commencement of his trial. Mr Williams appeared in accordance with the terms of his bail on each day of the trial but on 20 September 2022, after the jury returned a verdict of guilty, he was remanded in custody and later sentenced for that crime, and other crimes, to a lengthy term of imprisonment.
The legislative provisions
17 An order granting a person bail may be subject to conditions. The Bail Act, s 7, relevantly
provides:
"S 7 …
(4) An order for bail may be made subject to such other conditions as the judicial officer thinks desirable in the interests of justice and any such other condition may be expressed to take effect either before or after the person admitted to bail is released from custody.
(5) Without limiting the generality of subsection (4), an order for bail may be made on
condition that –(a) a person must deposit a specified amount of money to be forfeited to the Crown if the person admitted to bail fails to appear before a court as required by subsection (3) or fails to comply with a condition of the order for bail; or
(b) one or more suitable persons (other than the person admitted to bail) must enter into a recognizance in the prescribed form before an authorized person to forfeit a specified amount of money if the person admitted to bail fails to appear before a court as required by subsection (3) or fails to comply with a condition of the order for bail;
(5A) …
(6) A recognizance referred to in subsection (5) may require a suitable person to give security in such terms or in such manner as a judicial officer may order to better secure compliance with the recognizance."
18 Part 4 of the Bail Act is entitled "Forfeiture of Bail Money and Recognizances". Money paid pursuant to an order for bail made by the Supreme Court must be paid to the Registrar of the Supreme Court: s 14. Subject to the power to order that all or part of the sum deposited be appropriated to payment of a fine or costs in the event of conviction, on the determination of the proceedings in respect of which a person has been admitted to bail the Registrar must repay the money paid pursuant to the order for bail to the person who paid it: s 15.
19 If a person admitted to bail does not appear in accordance with the order for bail, s 16 assumes (although the legislative source of the power is not readily apparent) that the judicial officer presiding in the court in which that person is required to appear has power to order that the money deposited for bail by any person must be forfeited to the Crown. In the event of such an order the person whose money was deposited for bail may apply to show cause why that money should be returned to that person: s 17. Neither provision has application in this case because there was no occasion on which Mr Williams did not appear in accordance with an order for bail.
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20 A person who, without reasonable cause, contravenes a condition of an order for bail is guilty of an offence: s 9. Section 19 is entitled "Forfeiture of money deposited for bail" and provides:
"19(1) Where a person is convicted of an offence against section 9 , the court by which
that person is convicted must order –
(a) that the full amount of money ordered to be deposited is to be forfeited to the Crown;
and
(b) that the amount is to be payable to the Crown within such period as the court may
determine –
whether or not any application is made in the proceedings in that behalf.
(2) Notwithstanding subsection (1), where –
(a) the convicted person shows to the satisfaction of the court –
(i) that an order for forfeiture, or for forfeiture in full, as the case may be, would cause
excessive hardship to that person or the dependants of that person; and
(ii) that the hardship would not be relieved by payment of the amount to be forfeited in
instalments or by postponement of that payment to a specified date; or
(b) the court is satisfied that in the circumstances of the case it is just to do so –
the court may decline to make an order under that subsection or may order forfeiture in
part only."
21 Orders for forfeiture under s 19 may only be made by the court which convicted the person admitted to bail of an offence against s 9: s 19(1). Although Mr Williams was convicted of an offence under s 9, the court in which he was convicted was the Court of Petty Sessions, so the provision can have no application here.
22 Section 20 concerns forfeiture of recognizances entered into pursuant to s 7(5). It provides:
"20 Where a recognizance is entered into pursuant to section 7(5), a judge of the Court of Criminal Appeal or the Supreme Court, in a case where the person in respect of whom the recognizance is given is required to appear in either such Court, or a justice, in any other case, may–
(a) on application made in the prescribed manner to the judge or justice; and
(b) on production of the recognizance; and
(c) on proof that the person admitted to bail has failed to comply with a condition of
bail; and(d) on proof that notice of the application to the judge or justice has been served in
accordance with the regulations on the person who entered into the recognizance–order that the amount of the recognizance or such part of that amount as the judge or
justice considers appropriate be forfeited to the Crown."
23 The State's application is expressed to be made, both as to forfeiture of the sum deposited and payment of an additional sum, under s 20(a). It concerns a recognizance entered into pursuant to s 7(5). Although there is some imprecision in the terms of the various bail orders, I think it is appropriate to deal with the State's application on the basis that Ms Wooders entered into such a recognizance with payment of the deposit as security for the recognizance in accordance with s 7(6).
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Relevant factors
24 The factors relevant to determination of these applications were discussed by me in Tasmania v Wooders [2022] TASSC 15. That was a case also involving Ms Wooders. It concerned an application made by the State that all or part of the bail recognizance entered into by Ms Wooders for Mr Williams' brother, Robert Williams. It is not necessary to repeat everything which was stated in that case but a reminder of the important principles is appropriate. The overriding consideration is maintenance of the integrity of the bail system by emphasis on the purposes to be served by provision of surety, the importance of the obligation it imposes and the consequence of breach. The most important condition for a person admitted to bail is to appear and surrender to the order of the court at the time and place specified in the order and for any subsequent adjournment of the proceedings: s 7(3). However, bail conditions may serve a number of purposes, including to reduce the risk that a person will use the opportunity of bail to continue to offend, to control a risk an accused person may pose to a person or persons, or reduce the chance that an accused person may seek to influence potential witnesses.
25 For some of the period between 2017 and 2022 Mr Williams' appearance in court was secured because he was in custody. However while the bail orders were in place there was no instance on which Mr Williams failed to appear in court in accordance with his bail. There is no suggestion that he attempted to flee the jurisdiction or to otherwise escape his obligation to answer the charges he faced. However, he committed other breaches of conditions of his bail to which I referred earlier in these reasons. All of the breaches concerned Jordan Fenton. The bail condition which prohibited Mr Williams from having contact with her was first imposed on 27 March 2020. At the time Mr Williams was in a relationship with Ms Fenton but the condition was sought because it was expected that Ms Fenton would be (as she later was) a witness in his trial, to avoid or reduce the risk of improper influence or contamination of her evidence.
26 The first breach occurred on 4 December 2020. Mr Williams breached the non-contact and curfew conditions of his bail by being with Ms Fenton at the hospital for the birth of their child. At that time Ms Wooders had deposited $5,000 and entered into a promissory recognizance to pay $10,000 in the event of breach. The next breaches occurred on 29 and 30 May 2021 when Mr Williams contacted Ms Fenton by phone and text message. By then Ms Wooders had deposited $20,000. The final breach occurred on 1 September 2021 when Mr Williams contacted Ms Fenton by phone. The bail order, which was conditional on Ms Wooders depositing an amount, was revoked on 30 September 2021.
27 Ms Wooders gave evidence at the hearing of these applications. I have no doubt that she had a clear understanding of the obligations she undertook under the recognizance she gave. She had done so before for others and, on each occasion she appeared for Mr Williams' applications for bail her obligations, and the risk of forfeiture in the event of breach, was explained to her. On the other hand, I accept that there was little that she could have done to prevent the breaches which Mr Williams committed. Given her association with Mr Williams and Ms Fenton and her knowledge of their relationship I think it is possible that she turned a blind eye to contact between them. However, she said that each time Mr Williams was arrested she talked to him and reminded him of the need to comply. She trusted him to do so. A person who enters into a recognizance undertakes a real and substantial obligation to ensure that the person admitted to bail appears when required and complies with the conditions. However, more importantly in this case, the recognizance also serves to motivate the person released on bail to comply by the assurance that, if they fail to appear or breach a condition, the person who agreed to provide the recognizance will suffer the forfeiture. The accused must know that, if he or she breaks the trust that has been placed in them by a surety, often a family member or friend, the surety will suffer: Tasmania v Wooders [2022] TASSC 15 at [15].
28 Ms Wooders gave evidence about the source of the funds she deposited with the court. She agreed that of the first $5,000 she deposited that some was her money and some was contributed by Mr Williams himself. The evidence of where the further $15,000 came from is much less clear. She said
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that she borrowed $12,500 from her friend Lisa White, who obtained the funds from her mother and grandmother. The remaining $2,500 was obtained between "Stephen, Jordan and I". Lisa White gave evidence which confirmed that Ms Wooders asked to borrow some money from her to "help Stephen." She knew little else about what the money was to be used for. She was happy to help, however, because they had been friends for a long time and had previously lent money to each other when asked. Ms White said that some of the money came from her partner and some from her grandmother, whose money was controlled by her mother.
29 Although the proposition that Ms White lent $12,500 to Ms Wooders was common to the evidence of each of them, there were otherwise substantial differences between their evidence about the source of the funds and how and when it was paid. It was suggested to Ms Wooders that the source of all of the funds was Mr Williams himself. If that were the case it would substantially undermine the genuineness of the surety and reduce the incentive to discourage breach. I am satisfied that some of the funds came from Mr Williams himself. On the evidence before me it is impossible to determine with precision how much he contributed, but I would find that he, either directly or indirectly, paid at least $5,000 and possibly more. Counsel for the State contended that I should find that all of it came from Mr Williams but I am not persuaded that I should so find. I am satisfied on the balance of probabilities that Ms Wooders either paid or borrowed some of the money herself through a sense of duty to, and trust of, Mr Williams.
30 The next factor I consider relevant is the seriousness of the breaches. In my assessment, taking account of the total period during which Mr Williams was on bail, and the seriousness of the charges he faced, the bail breaches he committed are not particularly serious. As I have already pointed out the most important obligation was for Mr Williams to appear to answer the charges and there was no occasion on which he breached that obligation.
31 The remaining factor I consider relevant is the delay by the State in making application for forfeiture. The $10,000 promissory surety first entered into on 27 March 2020 was overtaken by subsequent bail orders. When Mr Williams breached a condition of his bail on 4 December 2020 no application for forfeiture of any sum was made. Nor was any application made following the breaches on 29 and 30 May 2021 and 1 September 2021 and the bail order which was conditional on Ms Wooders' recognizance and deposit, was revoked on 30 September 2021. Nor was any application made when Mr Williams pleaded guilty to the breaches in March 2022. Ms Wooders' application for return of the deposit was made on 8 September 2022 but the State's application for forfeiture was not made until 1 June 2023. By that time some of the deposit had been held by the Court for about six years and the balance for about two and a half years, and the bail order with the relevant conditions had not been in place for almost two years. Ms Wooders' contention that unless she had applied for return of the money nothing else would have happened carries considerable weight.
Result and orders
32 In my view, some of the money deposited by Ms Wooders should be forfeited to facilitate maintenance of the integrity of the bail system. The recognizance and security was provided, in a case involving serious criminal conduct, to attempt to prevent breaches of bail conditions but breaches were committed. However, the relatively minor nature of the breaches and the delay in application for forfeiture lead me to conclude that a substantial part of the security actually should be returned to Ms
Wooders and there should be no order for payment of any part of the promissory sum.
33 I order that $8,000 of the sum deposited by Ms Wooders be forfeited to the State and the balance be returned to her. I decline to order that any part of the $10,000 promissory surety first entered into on 27 March 2020 be forfeited, and to the extent that it may impose a continuing obligation I order that Ms Wooders be discharged from that recognizance.
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